Citation Nr: 0118997
Decision Date: 07/20/01 Archive Date: 07/24/01
DOCKET NO. 01-00 150A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to a certificate of eligibility for financial
assistance in purchasing an automobile or other conveyance
and necessary adaptive equipment.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Associate Counsel
INTRODUCTION
The veteran had active service from June 1941 to December
1945, from February 1946 to June 1946, and from August 1951
to December 1952.
This matter comes to the Board of Veterans' Appeals (Board)
from a January 2000 RO rating decision that denied the
veteran's application for a certificate of eligibility for
financial assistance in purchasing an automobile or other
conveyance and necessary adaptive equipment. The veteran
submitted a notice of disagreement in January 2000, and the
RO issued a statement of the case in April 2000. The veteran
submitted a substantive appeal in January 2001.
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supersedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the veteran if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
The record shows that service connection is currently in
effect for residuals of a shell fragment wound of the right
ankle, muscle group X, evaluated as 30 percent disabling;
arthritis of the lumbar spine with nerve root involvement,
evaluated as 20 percent disabling; arthritis of the left
knee, evaluated as 10 percent disabling; PTSD, evaluated as
70 percent disabling; and defective hearing, bilateral, with
tinnitus, evaluated as 20 percent disabling. The record
shows that in 1998, the veteran began using bilateral
crutches for walking because of balance problems and
considerable discomfort. Records also reflect marked
limitation of motion of the right ankle.
X-rays taken in January 2000 revealed post-traumatic changes
of the distal right fibula and nonunion of the fibula.
The new law provides that an examination is necessary where
there is competent evidence of a current disability, evidence
that the current disability may be related to service, and
the evidence is insufficient to decide the claim. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C.
5103A). In this case, service connection has been
established for residuals of a shell fragment wound of the
right ankle, arthritis of the lumbar spine with nerve root
involvement, arthritis of the left knee, PTSD, and bilateral
defective hearing with tinnitus. The evidence also reflects
the veteran's inability to use his right lower extremity in
an adequate matter, and his inability to walk without the use
of assistance from a brace, cane, crutch, another person,
prosthetic device, wheelchair, or other assistive device;
however, there is no competent medical opinion as to whether
the veteran has lost the use of one or both feet or hands, or
has ankylosis of one or both knees or hips as a result of his
service-connected disabilities, so as to entitle him to
financial assistance for the purchase of automobile and
adaptive equipment. Therefore, the evidence is insufficient
to decide the claim, and a new examination is necessary.
In the January 2000 rating decision the RO found that an
increased rating for residuals of the shell fragment wound of
the right ankle, muscle group X, was not warranted. In
January 2000, the veteran submitted a statement that must be
viewed as expressing disagreement with this determination.
The RO has not issued a statement of the case in response to
the notice of disagreement, and the issue of entitlement to
an increased rating for residuals of the shell fragment wound
of the right ankle, muscle group X, must be remanded to the
RO for the issuance of such a statement of the case.
38 U.S.C.A. § 7105; see Manlincon v. West, 12 Vet. App. 238
(1999); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (the
filing of a notice of disagreement initiates the appellate
process) see also Ledford v. West, 136 F.3d 776 (Fed. Cir
1998); Collaro v. West, 136 F.3d 1304 (Fed. Cir. 1998);
Buckley v. West, 12 Vet. App. 76 (1998).
In view of the above, the case is REMANDED to the RO for the
following actions:
1. The RO should, in accordance with
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 3(a), 114 Stat.
2096, 2097-98 (2000) (to be codified at
38 U.S.C. § 5103A(c)), request that the
veteran supply the names and addresses of
all facilities that have treated him for
his service-connected disabilities since
January 2000. The RO should then take
all necessary steps to obtain copies of
all records not already contained in the
claims folder. The RO should also inform
the veteran of any records it has been
unsuccessful in obtaining as provided
under Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114
Stat. 2096, 2097-98 (2000) (to be
codified at 38 U.S.C. § 5103A(b)(2)).
2. The veteran should be afforded VA
examinations to determine the extent and
severity of residuals of a shell fragment
wound of the right ankle, arthritis of
the lumbar spine with nerve root
involvement, and arthritis of the left
knee-including any functional impairment
caused by pain or weakness. The examiner
should review the claims folder,
including the service medical records and
post-service medical records and should
note such review in the examination
report. The examiner should offer
opinions as to:
(a) Whether the veteran has lost
the use of either hand or foot as a
result of his service-connected
disabilities;
(b) Whether the veteran has
ankylosis of either knee or hip as a
result of his service-connected
disabilities;
(c) Whether there is severe painful
motion or weakness associated with
the veteran's spine, right ankle, or
other affected joints;
(d) Whether the acts of grasping,
manipulation, etc., in the case of
either hand, or balance, propulsion,
etc., in the case of either foot,
could be accomplished equally well
by an amputation stump with
prosthesis; and
(e) Whether it is at least as
likely as not that the veteran's
loss of function of the lower or
upper extremities is related to his
service-connected disabilities.
3. The RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107)
are fully complied with and satisfied.
The RO should then review the veteran's
claim for entitlement to a certificate of
eligibility for financial assistance in
purchasing an automobile or other
conveyance and necessary adaptive
equipment and adjudicate the claim on the
merits.
4. If action remains adverse to the
veteran, an appropriate supplemental
statement of the case should be sent to
him and his representative, and they
should be afforded an opportunity to
respond. The supplemental statement of
the case should include the laws and
regulations referable to assistance in
purchasing an automobile or other
conveyance and necessary adaptive
equipment.
5. The RO should issue a statement of
the case as to the issue of entitlement
to an increased rating for residuals of
the shell fragment wound of the right
ankle, muscle group X. The veteran and
his representative should be advised that
the veteran must submit a VA Form 9 or
substantive appeal within 60 days of the
date of the supplemental statement of the
case in order to perfect his appeal and
obtain appellate consideration of this
issue.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action unless notified otherwise, but may furnish
additional evidence and argument while the case is in remand
status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992);
Booth v. Brown, 8 Vet. App. 109 (1995); see also
Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran is advised that the examinations requested in
this remand are deemed necessary to evaluate his claim and
that his failure, without good cause, to report for scheduled
examinations could result in the denial of his claim. 38
C.F.R. § 3.655 (2000).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).